Although the "tender years" doctrine of maternal preference has been widely repudiated by statute and case law, old prejudices die slowly. The Gender Bias Commissions of each state in which a report has been presented have acknowledged that bias continues to taint custody decisions. As overt bias becomes increasingly unacceptable, we must guard against reformulations that merely pour old beer into new bottles.

Origins and Purpose of the "Primary Caretaker" Theory In J.B. v. A.B., 242 S.E.2d 248 (W. Va. 1978), Justice Richard Neely freely acknowledged the maternal preference bias of his Court in the following terms:We reject this [father's] argument as it violates our rule that a mother is the natural custodian of children of tender years.

[The Court] rejects any rule which makes the award of custody dependent upon relative degrees of parental competence rather than the simple issue of whether the mother is unfit.

Behavioral science is yet so inexact that we are clearly justified in resolving certain custody questions on the basis of the prevailing cultural attitudes which give preference to the mother as custodian of young children. Id. at 251-52, 255 (emphasis added).

J.B. v. A.B. was so openly biased that it helped to accelerate the end of its own era. In 1980, the West Virginia legislature statutorily abrogated Justice Neely's maternal preference. W. Va. Code 48-2-15 (1980). As investigators and Gender Bias Commissions across the country have often found, however, bias may simply change its form rather than disappear. Justice Neely's rejoinder, Garska v. McCoy, 278 S.E.2d 357 (W. Va. 1981) was issued the following year:

[This case] squarely presents the issue of the proper interaction between the 1980 legislative amendment to W. Va. Code 48-2-15 which eliminates any gender based presumption in awarding custody, and our case of J.B. v. A.B., W. Va., 242 S.E.2d 248 (1978) which established a strong maternal presumption with regard to children of tender years.

* * *

While in J.B. v. A.B., supra, we expressed ourselves in terms of the traditional maternal preference, the Legislature has instructed us that such a gender based standard is unacceptable. . . .

* * *

Consequently, all of the principles enunciated in J.B. v. A.B., supra, are reaffirmed today except that wherever the words "mother," "maternal," or "maternal preference" are used in that case, some variation of the term "primary caretaker parent," as defined by this case should be substituted. Id. at 358, 361, and 363 (emphasis added).

Thus was the "primary caretaker" doctrine born. Let us be as plain, concise, and honest as was Justice Neely. The "primary caretaker" theory is first, foremost, and always a change-of-name device designed to maximize the number of cases in which the Court will be compelled to preserve the bias of maternal preference and award sole custody to the mother.

The Systematic and Purposeful Bias of the Primary Caretaker Theory

The phrase "primary caretaker" is a warm, fuzzy term with a superficial appeal. Like all legal terms, however, the substance is in the definition provided for the term. Every definition which has been put forward for this term has systematically and purposefully counted and recounted the types of tasks mothers most often perform while systematically and purposefully excluding the types of nurturing fathers most often perform. No effort is made to hide the bias.

In some definitions, the very first credit on the list of factors to be considered goes to that parent, regardless of gender, "who has devoted significantly greater time and effort than the other in . . . breastfeeding." 1 The definitions often do not limit how far forward in time credit is to be extended for having performed such services in infancy. While the historic role of breastfeeder certainly should have little relevance to the custody of an adolescent who is contemplating the merits of rival street gangs, the more fundamental problem is the exclusion of consideration for the father's efforts and involvement throughout the child's life. No one seriously disputes the role of father absence in street gang formation, teenage pregnancy, and other pathologies yet the "primary caretaker" theory remains fixated on "mothering" and ignores "fathering."

Even on tasks where simple physical labor is involved, the "primary caretaker" theory aggressively asserts that what traditionalists called "women's work" is meritorious while "men's work" is irrelevant. The typical "primary caretaker" definition gives credit for shopping but denies credit for earning the money which permits the shopping. Credit is given for laundering the little league uniform but not for developing the interest in baseball or providing a role model in settings outside the home; for vacuuming the bedroom floors but not for cutting the grass or shovelling the snow; and for chauffeuring the children but not for commuting to work or maintaining the car.

Generally, the items which are counted in accumulating "primary caretaker" points are not matters of supreme difficulty or matters where abilities are differentially distributed. For example, the usual definition gives points for "planning and preparing meals." In our house, the seven-year-old loves canned spaghetti in "ABC" shapes and hates "Ninja Turtle" shapes, the five-year-old has precisely reversed preferences, and the two-year-old can fingerpaint equally well with either. To establish a custody preference on the basis of opened-can counts is an affront to all parents and hardly squares with our understanding that many women entered the paid workforce precisely because they were stunted by the mindless tasks of daily child care.

Most unreasonable is the "primary caretaker" theory's contempt for paid work. Time spent shopping counts; paid work does not. Often, grocery shopping, clothes shopping, and other shopping are counted separately. A single afternoon of shopping can be counted several times over but paid work is the only thing that permits the shopping. Who is really providing the child care?

Work is devotion, sacrifice, nurturance. . . . Work is parenting. It is obscene to say that spending is nurturance while earning is mere heartless, transferrable cash. I don't know any parents who are incapable of spending, but many are incapable of earning. Between a spending specialist and an earning specialist, which is the better caregiver?

In any two-adult household, there is a division of the tasks necessary to simply carry on with life even when no children are present. Cooking, cleaning and shopping are not counted as child care in the childless household any more than paid work, yard maintenance and home repairs are so counted. The nature of these tasks does not change with the introduction of children. Instead, all of the previously performed tasks -- specifically including paid work -- collectively support the child's environment. 2 What changes with the arrival of children is the commencement of the child's need to develop a relationship with both parents and the research shows that "fathers spend just as much time in primary interaction as do mothers." 3 The gender bias inherent in the "primary caretaker" theory lies in its insistence that the types of tasks most often performed by women, regardless of the presence of children, are worthy while those of men are not.

The biased selection of factors deemed worthy of credit under the "primary caretaker" theory is not the only flaw in the theory. Even if it was possible to remove the gender bias from the selection of "primary caretaker" factors, the theory still suffers from the fact that its "freeze frame" analysis of who-did-what during the marriage ignores the reality that children's needs change. The best breastfeeder may be a lousy soccer coach, math tutor, or spaghetti can opener.

The historical division of labor during a marriage also says nothing about the abilities of the parents and their actual behavior either before or after the marriage. Just as Mom and Dad had to fend for themselves before the marriage, so also will they be compelled to fend for themselves after the divorce. The "primary caretaker" father will have to get a job. The "wage slave" mother will have to cook more meals and wash her own laundry. Similarly, each will have to provide for the needs of the children during their periods of residence. We know this is necessary and we know that it happens even in cases of the minimalist, "standard" visitation order.

The allocation of tasks that existed during the marriage necessarily must change upon divorce. The agreed specialization of labor during the joint enterprise of marriage can not continue after divorce. Each former spouse will have to perform the full range of tasks and the difficulties encountered by the former full time homemaker who must now learn to earn a wage have been a central concern of feminists. The "primary caretaker" theory, with its imposition of single parent burdens upon the spouse least able to cope with the need for earning a living is thus tangibly damaging to the very class that its bias aims to aid. 4 As a growing number of leading feminists have come to understand:

Shared parenting is not only fair to men and to children, it is the best option for women. After observing women's rights and responsibilities for more than a quarter-century of feminist activism, I conclude that shared parenting is great for women, giving time and opportunity for female parents to pursue education, training, jobs, careers, professions and leisure. [/justify]

There is nothing scientific, logical or rational to excluding the men, and forever holding the women and children, as if in swaddling clothes themselves, in eternal loving bondage. Most of us have acknowledged that women can do everything that men can do. It is now time to acknowledge that men can do everything women can do. 5

What your child and every child needs is the active, extended emotional and physical involvement of two parents, not a division of time based upon historical spaghetti can counts.

"Primary Caretaker" as a Prediction of the "Best Interests" of the Child"

If the law supposes that," said Mr. Bumble, "the law is a ass, a idiot." Dickens, Oliver Twist, Chapter 10, page 51. The best defense of the "primary caretaker" theory was presented by Professor David L. Chambers in his article, "Rethinking the Substantive Rules for Custody Disputes in Divorce," 83 Mich. L. Rev. 477 (1984). 6 None of the articles since Chambers have matched his thorough analysis and many are bare claims for the mother's ownership and dominion over the child. Thus, Professor Mary Becker writes that:

I therefore suggest that more custody questions would be resolved correctly were we to defer to the decision of the mother with respect to the best custodial arrangement for her child as long as she is fit. 7

Chambers, in contrast, labored to analyze mountains of research and more mountains have appeared since the publication of his article. Nothing before or since his article, however, shows that mothers are better parents or that either parent can not readily take on the tasks which had been allocated to the other parent during the marriage. What the research does show is that children suffer dire consequences when they are deprived of the active and continuous involvement of one of their parents. No one would suggest that the nation's gang members, drug addicts, pregnant teenagers and school dropouts are suffering from excessive fathering.

The interesting thing about the Chambers article is that, like a good mystery thriller, the suspense lasts until the end. As late as the 83rd page of the article, Chambers advises that "on the basis of the current empirical research alone, there is thus no solid foundation for concluding that children, even young children, will be typically better off if placed with their primary caretaker." Id. at 560. Ultimately, Chambers suggests a weak preference for the "primary caretaker" up to age five and no preference thereafter. Id. at 564.

Up to the concluding pages, Chambers could have gone either way. What tipped the balance? Chambers offers three answers:

1. "Research on the ties of children to secondary caretakers makes clear that such ties are typically stronger than once believed but leaves open the significant possibility that preserving the intimate interaction of the child with the primary caretaker is of greater importance to the child."

Id. at 561.

2. "[M]y earlier review suggests the probability that primary caretakers will suffer more emotionally than secondary caretakers when shifted into a mere visitor's role." Id. at 561 (emphasis added).

3. "A primary caretaker preference will reduce the incidence of litigation by letting one side know it is less likely to win. . . Whoever bears the burden of proof will be denied custody in those cases, probably substantial in number, in which the Judge concludes at the end of all the evidence that she has no strong basis for believing that the children will do better in one setting than the other." Id. at 563 (emphasis added).

Of these three rationales, only the first is related to the well-being of the child and the real problem identified by social science researchers is precisely the opposite of what Chambers posits. It is the bond between the so-called "secondary caretaker" and the child that is most severely threatened by reduction to the "mere visitor's role" in a typical custody order. The short attention spans and memories of smaller children create the greatest need for frequent and continuing contact with both parents. See, e.g., "Children of Divorce: A Need for Guidelines" by Dr.áKen Magid and Dr. Parker Oborne, 20 Family Law Quarterly 331 (Fall 1986). Judicially imposed limitations on children's contact with the "secondary caretaker" are a cause of broken and weakened parent-child bonds. Id. The winner-loser outcomes that are sought by the "primary caretaker" theory are inconsistent with what we know about children's need for both parents. Child development specialists do not support "primary caretaker" driven custody determinations.

As to the second rationale, the claim that the "primary caretaker" will be emotionally deprived by a failure to obtain sole custody, it is only necessary to recall the fact that a child is not a toy. 8 The idea that custody should be governed by one parent's emotional "need" to possess and own the child is precisely contrary to the trend of the law over the past thirty years away from the notion that the child is the property of the custodial parent. In California, for example, a court considering an award of sole custody must examine:

which parent is more likely to allow the child or children frequent and continuing contact with the non-custodial parent...California Civil Code, Section 4600(b)(1).

Children want, love, and need two parents, not a rule that encourages hoarding. The third rationale's claim of virtue in bright-line rules limiting judges' discretion supports no particular choice of arbitrary criteria. 9 Awarding custody to the tallest parent is even easier to administer and probably no less rational. 10 Before imposing arbitrary rules, however, please remember that we are talking about the most personal and important decisions that will occur in most people's lives.

To state that some classes of citizens are "less likely to win" makes child custody decrees sound like a game, like blackjack, where ties go to the dealer. The parent-child relationship, however, is not a game and real human beings are entitled to a real day in court, not a crooked table. Cases of "ties" between equally fit parents are precisely the cases where we should not want a mechanical preference to pick a winner and a loser. Our real focus should be on developing a structure that demilitarizes divorce by getting past winner/loser dichotomies and by encouraging the maximum continued involvement of both parents.

CONCLUSION

Children are born with two parents. Children want, love, and need two parents. In all but the vanishingly small number of pathological cases, the courts should strive to maximize the involvement of both parents. If distance or other factors prevent a substantially equal relationship with both parents, the preference should go to that parent who shows the greater willingness and ability to cooperate and nurture the other parent's relationship with the child. That's what being a caretaker is all about.

Endnotes:

1. See, e.g., Proposal of Professor Carol Bruch.

2. Certainly, the introduction of children increases the total burden upon the household but these burdens do not make one adult or one subset of tasks inherently more worthy than the other. For every mother who reduces paid work because of a "devotion to the children," there is a father who becomes more of a wage slave because of that same devotion.

3. Robinson, "Caring for Kids", 11 Am. Demographics at 52 (July 1989). Additionally, with more two-career couples in today's population, the "primary caretaker" is likely to be the day care center. Does the "secondary caretaker" beat the "tertiary caretaker?" Unless disqualified from eligibility, the "primary caretaker" theory causes Mom and Dad both to lose custody to the nanny.

4. Single parent overload also shortchanges the children:

"Children [living in single-parent households] receive two to three fewer hours of care per week from the custodial parent than do children in two-parent households. Children who live only with their mother, then, lose three hours of week of care from their mothers, plus a three hours a week of care by the absent father.

Id.; Bianchi, "America's Children: Mixed Prospects", 45 Population Bulletin 1, 20-21 (June 1990) (primarily because of the absence of a second parent, children in single-parent families spend considerably less time in one-on-one activities with a parent than children in intact families).

5. Karen DeCrow, former President of the National Organization for Women, Syracuse News Times, January 5, 1994 (emphasis added).

6. I selected the Chambers article for this brief analysis both because it presents the most imposing defense of the "primary caretaker" theory and because of my admiration for his intellect.

8. Chambers also candidly acknowledges every parent's pain "when shifted into a mere visitor's role." In another context, I am fascinated by this who-cares-most preference in litigated disputes. As a frequent litigator against the U.S. Government, I am sure that my oppressed clients always care more about the outcome of their cases than does the big bureaucratic government.

9. For a more extended reply to Chambers and other bright-line alternatives to the best-interests test, see Carl E. Schneider, "Discretion, Rules, and Law: Child Custody and the UMDA's Best-Interest Standard," 89 Mich. L. Rev. 2215 (Aug. 1991).

10. Using the same backward look at carefully selected factors, we can determine which parent has historically provided a better shoulder seat to watch parades, reached toys on high shelves, and provided greater vertical lift during "pick-me-up" games.